Citation NR: 9803035
Decision Date: 01/30/98 Archive Date: 02/03/98
DOCKET NO. 93-07 028 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to an evaluation in excess of the currently
assigned 30 percent for service-connected post-traumatic
stress disorder (PTSD).
2. Entitlement to a compensable evaluation for service-
connected residuals of a fracture to the left upper fibula.
3. Entitlement to a compensable evaluation for service-
connected residuals status post deflection of the nasal
septum.
4. Entitlement to an evaluation in excess of the currently
assigned 10 percent for service-connected residuals of a
gunshot wound to the right thigh, Muscle Group XIII.
5. Entitlement to a compensable evaluation for service-
connected residuals of a gunshot wound to the left arm,
deltoid and scapular area.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
J.M. Daley, Associate Counsel
INTRODUCTION
The veteran had active service from June 1968 to May 1970.
This matter is before the Board of Veterans’ Appeals (Board)
on appeal of rating decisions from the Detroit, Michigan,
Department of Veterans Affairs (VA) Regional Office (RO).
By way of history, in a statement received by the RO on July
29, 1971, the veteran complained of having problems with his
nerves. By rating decision dated in August 1971, the RO
denied his claim; the veteran appealed. By decision dated in
January 1973, the Board confirmed the RO’s denial of service
connection for a nervous disorder. In a statement received
in September 1991, the veteran asserted clear and
unmistakable error relevant to the Board’s denial of service
connection for a psychiatric disorder. The RO accepted such
as an application to reopen his claim of entitlement to
service connection for a psychiatric disorder, and, by rating
decision dated in November 1991, established service
connection and assigned a 10 percent evaluation for PTSD,
effective September 1990. In December 1991, the RO received
a notice of disagreement with respect to both the assigned
disability evaluation and the assigned effective date for the
award of service connection for PTSD. Subsequent to issuance
of a statement of the case on those issues, the veteran
perfected his appeal. In October 1993, the Chairman of the
Board ordered reconsideration of its January 31, 1973,
decision pertinent to the veteran's nervous disorder, stating
that the reconsideration decision, once promulgated, would
replace the January 1973 decision. See 38 U.S.C.A. § 7103
(West 1991); see also VAOPGCPREC 70-91 (October 15, 1991).
The Board, by reconsideration decision dated in
November 1994, determined that an earlier effective date was
warranted and remanded the case to the RO for implementation.
By rating decision dated in November 1994, the RO revised the
award to reflect the establishment of service connection
effective July 29, 1971, and an assignment of a 30 percent
evaluation from that date. Although the increase and
assignment of an earlier effective date represented a grant
of benefits, the United States Court of Veterans’ Appeals
(Court) has held that a "decision awarding a higher rating,
but less than the maximum available benefit...does
not...abrogate the pending appeal...." AB v. Brown, 6 Vet.
App. 35, 38 (1993). The VA’s Schedule for Rating
Disabilities (Schedule), 38 C.F.R. Part 4 (1996), provides
for disability evaluations in excess of 30 percent. See
38 C.F.R. § 4.124a (1996). Thus, as the RO has noted, the
veteran’s appeal with respect to the issue of entitlement to
an increased evaluation for service-connected PTSD continues.
The Board notes that effective November 7, 1996, during the
pendency of this appeal, the VA’s Schedule for Rating
Disabilities (Schedule), 38 C.F.R. Part 4, was amended with
regard to rating mental disabilities. 61 Fed. Reg. 52695
(1996) (codified at 38 C.F.R. §§ 4.125-4.130). Because the
veteran’s claim was filed before the regulatory change
occurred, he is entitled to application of the version most
favorable to him. See Karnas v. Derwinski, 1 Vet. App. 308
(1991). In the instant case, the RO provided the veteran
notice of the revised regulations in the June 1997
supplemental statement of the case; he was also provided the
opportunity to present further evidence and argument in
response. Thus, the Board finds that it may proceed with a
decision on the merits of the veteran’s claim, with
consideration of the original and revised regulations,
without prejudice to the veteran. See Bernard v Brown, 4
Vet. App. 384 (1993).
The Board further notes that the veteran presented testimony
pertinent to his PTSD at a March 1993 hearing, conducted
before a member of the Travel Board no longer with the VA.
To ensure that all procedural processes have been complied
with, the veteran and his representative were contacted by
the Board in November 1997 and informed of the veteran’s
entitlement to a further hearing if desired. In
correspondence dated in January 1998, he indicated that he
did not desire a further hearing. Accordingly, the Board
will proceed to dispose of the veteran’s claim of entitlement
to an increased evaluation for service-connected PTSD in the
decision herein below.
The Board also notes that by rating decision dated in October
1996, the RO denied entitlement to increased/compensable
evaluations for service-connected residuals of a gunshot
wound to the right thigh, Muscle Group XIII; residuals of a
gunshot wound to the left arm, deltoid and scapular area;
residuals status post deflection of the nasal septum; and
residuals of a fracture to the left upper fibula. That
rating decision also increased disability evaluations
assigned for service-connected lumbar strain, from zero
percent to 10 percent disabling, and for service-connected
hearing loss, from zero percent to 20 percent disabling.
Later in October 1996, the veteran submitted a statement in
which he contested the six determinations made in that rating
decision. He specifically referenced evidence pertinent to
his knee and asserted that such was incorrect. In June 1997,
the veteran submitted a further statement in disagreement,
mentioning further nasal surgery and continued pain in his
left arm, and requesting a response relevant to his
October 1996 letter. In July 1997, the RO issued a statement
of the case pertinent to the issues of entitlement to
increased evaluations for service-connected residuals of a
deviated nasal septum and a gunshot wound to the left arm.
Later in July 1997, the veteran submitted a statement in
which he noted that the statement of the case did not include
discussion relevant to his residuals of left fibula fracture
and gunshot wound to the right thigh. At that same time the
veteran submitted VA Form 9, in which he expressed further
arguments relevant to his deviated septum and his left
shoulder. In August 1997, the RO issued a statement of the
case with respect to the issues of entitlement to
increased/compensable evaluations for service-connected
residuals of fracture to the left fibula and gunshot wound to
the right thigh. Later in August 1997, the veteran submitted
two VA Form 9’s relevant to his left fibula fracture, right
thigh wound, left shoulder and deviated septum. Thus, the
veteran has perfected his appeal with respect to those four
issues, and, as indicated on the first page of this decision,
such are included in this appeal.
It is unclear whether the veteran desires to pursue an appeal
with respect to the issue of entitlement to an increased
evaluation for lumbar strain; however, based on the above
statements. A similar review of the veteran’s statements
does not indicate that he has initiated an appeal with
respect to the October 1996 decision to increase his
evaluation for service-connected hearing loss. Thus, those
issues are not before the Board.
The issues of entitlement to increased evaluations for
service-connected residuals of a gunshot wound to the right
thigh, Muscle Group XIII and for service-connected residuals
of a gunshot wound to the left arm, deltoid and scapular area
will be discussed in the remand portion of this decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his service-connected PTSD is more
severely disabling than reflected by the currently assigned
evaluation. He reports symptoms to include survivor guilt,
insomnia, withdrawal, nightmares, intrusive thoughts,
depression, anger and irritability, which he asserts
interfere with his ability to maintain adequate social and
employment relationships. The veteran also contends that the
noncompensable evaluations assigned to his service-connected
residuals of a fracture to the left upper fibula and service-
connected residuals status post deflection of the nasal
septum do not adequately reflect his current level of
disability. He complains of left extremity pain and impaired
function, and he complains of difficulty breathing through
his nose. He in essence argues that his symptomatology
warrants compensable evaluations for both of those
disabilities.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against increased/compensable evaluations for
PTSD; residuals of a fracture to the left upper fibula; and
residuals, status post deflection of the nasal septum.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained.
2. The veteran’s PTSD is productive of no more than a
definite inability to establish or maintain effective or
wholesome relationships with people and/or definite
industrial impairment under the rating criteria in effect
prior to November 7,1996.
3. The veteran’s PTSD is productive of no more than
occupational and social impairment with occasional decrease
in work efficiency and intermittent periods of inability to
perform occupational tasks, with general satisfactory
functioning under the rating criteria effective November 7,
1996.
4. Service-connected residuals of a fracture to the left
upper fibula consist of no more than subjective complaints of
pain, without clinical evidence of significant limitation of
motion, instability, crepitus or weakness and without x-ray
evidence of arthritis.
5. The competent and probative medical evidence shows that
the veteran's nasal septum, status post deflection of the
nasal septum, is straight and that all nasal passages are
clear without any pathological evidence of obstructed
breathing resulting from service-connected disability.
CONCLUSIONS OF LAW
1. The criteria for a rating in excess of 30 percent for
PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. Part 4, § 4.132, Diagnostic Code 9411(1996);
61 Fed. Reg. 52695-52702 (October 8, 1996) (to be codified at
38 C.F.R. § 4.130, Diagnostic Code 9411).
2. The criteria for a compensable evaluation for service-
connected residuals of a fracture to the left upper fibula
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes
5257, 5260, 5261, 5262 (1996).
3. The criteria for a compensable evaluation for service-
connected residuals status post deflection of the nasal
septum have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. §§ 4.3, 4.7, 4.97, Diagnostic Code 6502
(1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
The veteran had active service from June 1968 to May 1970.
His DD Form 214 reflects that his military occupational
specialty was light weapons infantryman with the 50th
Mechanized Infantry Division. He is in receipt of the Combat
Infantryman’s Badge and a Purple Heart Medal.
A service medical report of x-ray dated in July 1968 reveals
evidence of a nondisplaced fracture across the mid-nasal
bones. Service medical records also reflect that the veteran
incurred a closed, avulsion-type fracture to the left fibular
head after twisting his knee in March 1970. There was no
arterial or nerve involvement associated with that injury.
April 1970 records indicate that the veteran complained of
continued tenderness over the left fibular head, without
instability, effusion or limitation of left knee motion.
Records indicate that the fracture healed fully. Examination
at service discharge in May 1970 included notation of some
limitation of left leg motion subsequent to the fracture.
A VA general medical examination was conducted in October
1970. The examiner noted that the veteran’s left nasal bone
was displaced due to an old injury. X-rays revealed an old
non-united fracture of the left fibular head. There were no
scars noted on the left knee or leg. The veteran had a
normal range of hip and knee motion bilaterally. He
evidenced some difficulty squatting.
Based on the above, by rating decision dated in December
1970, the RO established service connection effective May 14,
1970, for disabilities to include residuals of fracture to
the left fibula, evaluated as 10 percent disabling. By
rating decision dated in August 1971, the RO established
service connection and assigned a zero percent evaluation for
a deflected nasal septum, effective July 29, 1971.
VA examination was conducted in January 1972. The VA
examiner noted a high deviated septum with some obstruction.
X-rays revealed complete osseous union of the left fibular
fracture with unremarkable joint space and soft tissues and a
normal left lower leg. Physical examination revealed a
normal alignment and range of left knee motion. The left
knee joint was stable, without evidence of effusion,
swelling, tenderness, atrophy of other limitation. There was
no indication of neurological deficit in either extremity.
Psychiatric evaluation was also conducted at that time. The
veteran complained of experiencing guilt, fear, doubts,
indecision and depression. He provided a history of
experiences during combat, to include stepping in a booby
trap and causing the death of someone behind him; setting up
an ambush that resulted in injury to several villagers. He
reported symptoms to include stomach upsets and headaches,
which he attributed to nervousness. The impression was
psychoneurosis with obsessive, compulsive and depressive
features resulting in some degree of social impairment.
By rating decision dated in April 1972, the RO decreased the
evaluation assigned for service-connected residuals of a left
upper fibula fracture from 10 percent to zero percent
disabling, effective July 1, 1972.
By statement dated in April 1972, T.K., M.D. stated that the
veteran continued to have problems such as pain related to
his service-connected fibular fracture, aggravated by his
employment. By statement dated in May 1972, Dr. T.K.
reported treating the veteran for continued neuroses.
Clinical findings relative to the veteran’s left fibula and
left lower extremity resulting from VA examination in July
1972, were relatively unchanged from prior examination.
The report of VA examination conducted in October 1975
includes notation that there was no evidence of sinus
obstruction; the veteran continued to claim pain to pressure.
X-ray of the left knee was normal. After physical
examination the VA examiner concluded that the veteran
evidenced minimum orthopedic residuals due to a ligamentous
strain and very slight loss of motion in the left knee.
An outpatient record dated in August 1979 includes a notation
that the veteran was having difficulty breathing through his
nose. VA outpatient records dated in November 1979 and
December 1982 indicate problems with recurrent sinusitis and
trouble breathing through the nose.
VA examination was conducted in January 1984. X-rays of the
left leg were negative. The veteran's gait was normal.
There was no evidence left of knee crepitus or effusion.
There was minimal left lateral collateral ligamentous laxity.
Range of motion of the lower extremities was full.
VA outpatient records dated from April to August 1987
indicate continued treatment for chronic sinusitis and nasal
obstruction, as well as a left knee problem. An April 1987
record includes complaints of left knee pain and a diagnosis
of degenerative arthritis. In July 1987, the veteran
underwent a septorhinoplasty, resecting the nasal septum.
July 1987 outpatient records also include a diagnosis of
degenerative arthritis of the left knee. An August 1987
follow-up record indicates that the veteran was doing well
without breathing trouble following the surgery.
VA examination was next conducted in April 1990. X-ray of
the left knee was normal at that time. Examination revealed
no evidence of any left fibula or knee symptomatology: There
was no joint or bone deformity; no crepitus; no effusion; no
atrophy as compared to the right and no instability. The
diagnosis was no residuals from fibular fracture.
VA examination was also conducted in August 1990. With
respect to the veteran’s nasal complaints, the examiner noted
an alar collapse. X-rays of both knees and ankles were
negative. The veteran evidenced a normal gait. There was no
evidence of any neurologic impairment affecting the lower
extremities. There was no evidence of crepitus, effusion,
instability or deformity of the lower extremities. The
examiner indicated that there were no evident residuals from
a left fibular fracture.
By rating decision dated in March 1991, the RO denied
entitlement to service connection for arthritis of the left
knee, ankle or leg.
In October 1991, VA psychiatric examination was conducted.
The veteran complained of guilt, fatigue, nervousness, lack
of organization and nightmares. He reported being married
with seven children. He stated helping with household chores
and was also working at the time. He stated that he did not
socialize. He described his sleeping as three-to-four hours
a night, with nightmares every time and his appetite as
sometimes good, sometimes not. Mental status evaluation
revealed no loose association. His affect was somewhat shy,
depressed and anxious. He denied suicidal ideation or past
attempts. He did report survival and other guilt feelings,
feelings of hopelessness, worthlessness and apprehension.
His perception and sensorium was clear. He was oriented in
all spheres. He complained of dissociative feelings,
sometimes becoming dazed and being unable to remember where
he is and how he got there. His cognitive functioning was
satisfactory. Diagnoses included dysthymic reaction,
dissociative experience and mild PTSD. Stressors were
identified as related to the military. The veteran’s global
assessment of functioning score (GAF) at that time was stated
to be above 60. The examiner opined that social and
vocational disability was moderate.
Based on the above, by rating decision dated in November
1991, the RO established service connection for PTSD,
evaluated as 10 percent disabling, effective September 6,
1990.
As set out in the introduction section of this decision, the
veteran disagreed with both the established effective date
and assigned disability evaluation. He provided testimony in
support of his arguments at a personal hearing before the RO
Hearing Officer in May 1992; a transcript of that hearing is
contained in the claims file. In March 1993, the veteran
presented testimony before a member of the Travel Board
relevant to his request for an earlier effective date/higher
evaluation and reconsideration of a prior Board decision; a
transcript of his testimony is also of record.
The claims file contains a social work report dated in
January 1992. The veteran reported that his marriage was
functional and related some stress, particularly when their
son died at birth in 1984. He stated that sometimes when he
got angry he felt like yelling but refrained, fearful his
family would get angry with him. He stated that he had no
close friends outside of his work relationships or monthly
contact with another married couple. He complained about his
wife’s spending habits and tendency to be critical. He
reported not wearing his hearing aids in order to block out
things that might upset him, and stated that this caused
difficulty at work since he can’t always hear his co-workers.
The veteran provided a history of employment with General
Motors since 1967 and stated that he work consisted of data
compilation and report submission to management. Although
working in teams, the veteran reported doing most of the work
to ensure it gets done. He related being reprimanded by his
supervisor for not getting along with his co-workers. The
veteran also stated that due to difficulty sleeping at night
he sometimes fell asleep at work. The veteran reported
significant family debt and being chronically late in making
payments. The social worker concluded that both the
veteran’s employment and marital relationships seemed
marginally functional with latent conflicts due to the
veteran’s potentially disruptive behavioral patterns.
A VA treatment summary dated in December 1992 indicates
problems to include sleeplessness, anxiety, restlessness,
recurring nightmares, night sweats, flashbacks and episodes
of forgetfulness. The veteran reported being depressed but
being able to cope with employment and family situations with
a fair amount of success. He reported difficulties dealing
with people, thus isolating himself. He stated that his
relationship with his wife was fair. The examining physician
noted significant health problems affecting both the veteran
(colon cancer) and his spouse (breast cancer) that were
enormously stressful.
In April 1994, the Board obtained a medical opinion relevant
to the veteran's psychiatric status. After a review of the
claims file, E.C., Jr., M.D. opined that the veteran had PTSD
and that such began in military service.
As set out in the introduction section of this decision,
based on consideration of the record as reported in brief
above, the Board, by decision dated in November 1994,
reconsidered the veteran's claim and found that an earlier
effective date for service connection of PTSD was warranted.
Later in November 1994, the RO assigned an effective dated of
July 29, 1971, and assigned an evaluation of 30 percent from
that date.
A November 1994 record includes a diagnosis of mild
obstructive sleep apnea. A VA outpatient record dated in
February 1995 indicates that the veteran had a probable
diagnosis of sleep apnea.
VA outpatient reports dated in May 1995 include notation of
complaints of bilateral knee pain; the impression was
degenerative joint disease. Other May 1995 records indicate
continued treatment for psychiatric symptoms.
The veteran’s PTSD was evaluated by the VA in September 1995.
The VA examiner noted that the veteran presented as an alert
man in general good health and personal hygiene. The veteran
reported leaving work when becoming angry, and complained
that he could not get promoted because his boss said he
didn’t get along with anybody. The examiner noted that the
veteran continued to live with his spouse and children. The
veteran complained of nightmares and expressed guilt over not
being able to save one of his friends. He reported an
inability to enjoy sexual activity with his wife. The VA
examiner noted that the veteran had a good work record,
having worked for General Motors ever since service
discharge. The veteran related that his home life was marred
and that in order to get away from his family he goes into a
shed on his property. The examiner noted that the veteran’s
conduct was appropriate during the interview and that he
manifested a normal level of cognitive functioning. The
diagnosis was PTSD by history. The veteran’s GAF was stated
to be 80. The VA examiner commented that the veteran’s
disability was in the 20 to 40 percent category, based on
reports of subjective disturbances from recurrent nightmares
and flashbacks, in conjunction with only mild occupational
impairment.
By letter dated in December 1995, K.R., M.D., a staff
psychiatrist at the VA mental health clinic summarized the
veteran’s disability status. Dr. K.R. noted that the veteran
had been in receipt of treatment for several years and
currently held diagnoses of PTSD and dysthymic disorder. Dr.
K.R. opined that the veteran’s disability prevented him from
having wholesome and meaningful relationships at work and at
home, significantly reducing his flexibility so as to result
in considerable industrial impairment.
Reports of VA hospitalization in February 1996 indicate that
the veteran underwent uvulopalatopharyngoplasty and a
bilateral inferior turbinectomy. He was discharged without
complications. March and May 1996 records indicate that the
veteran was status post uvulopalatopharyngoplasty, healing
nicely. The veteran reported that his sleep apnea was almost
resolved and that his snoring had decreased.
VA orthopedic examination was conducted in July 1996. At
that time the veteran complained of a painful left knee, that
sometimes “pops” and that had given out several times,
causing him to fall. The veteran complained of muscle spasm
in all the injured areas when the weather changed.
Examination of the left knee revealed no effusion, heat,
redness, tenderness or lateral instability. The veteran had
extension to zero degrees and flexion to 110 degrees. The
examiner commented that the veteran resisted efforts to flex
the knee further. The examiner commented that there was no
significant muscle defect in the left knee and no significant
scars. X-ray of the left knee was negative. The examiner’s
impression was no cause found for pain in the left knee.
Examination of the veteran’s sinuses was also conducted in
July 1996. The veteran complained of difficulty with nasal
breathing and restless sleeping. Objective examination
revealed that the septum was in the midline, the nose was
straight, and there was no evidence of rhinitis or lesions.
Nasal passages were all clear.
VA psychiatric examination was conducted in February 1997.
That examination report included notation that the veteran
had had surgery for his sleep apnea problem three weeks
earlier. The veteran also complained of left knee pain. The
veteran reported that he did not have a current good
relationship with his siblings. He stated that he had a
bachelors Degree in Engineering and had worked at General
Motors for 29 years. He reported doing well financially. He
gave a history of a
25-year marriage. He reported that his sexual relationship
with his spouse has been strained since she underwent
mastectomy eight years earlier. The veteran stated that they
had six children as well as one adopted son, five of whom are
currently living at home. The veteran described some
difficulties with his 18-year-old son who had been involved
in drinking and shoplifting. The veteran complained of
feeling tired and irritable, often feeling as if everyone
were against him. He reported having a poor attitude towards
others, getting involved in arguments at work He stated that
he was once disciplined and placed on compulsory leave
without pay for a period of three day. He stated that since
that time he takes his medicine and stays on his own. The
veteran reported that his boss told him he would have been
fired if he weren’t a veteran. The veteran also complains of
an inability to advance. He further reported frequent
intrusive nightmares about his Vietnam experiences, which he
tries to avoid or suppress. He described some social
alienation and disengagement due to irritability and
erroneous perceptions in interpersonal relationships.
Mental status examination in February 1997 revealed that the
veteran was comfortable, sociable and verbal throughout the
interview. The panel noted no particular hypervigilance or
agitation of any increased psychomotor activity while the
veteran related his war experiences. His affect and mood
were indicative of anger and irritability, as well as
expressions of frustration in his work and in his sexual
relationship with his spouse. The veteran expressed cynicism
with regard to family life and his health problems. The
examiners commented that the veteran was able to express a
wide range of emotions and that the veteran’s thought content
was devoid of any irrationality or psychotic symptomatology.
The veteran admitted that his sleeping problems were only
partly due to nightmares, stating that his sleep was
aggravated because of chronic breathing difficulties and
other health problems. The veteran felt that his PTSD
symptoms had been relatively at rest on medications.
Cognitive functioning was good. The veteran was well-
oriented without evidence of any memory problems or cognitive
dysfunction. His insight into his problems was stated to be
satisfactory. The examiner diagnosed chronic dysthymic
disorder, involving anxiety and depressive manifestations
complicated by situational stresses; PTSD, chronic,
adequately compensated with therapeutic programs; a history
of chronic sleep disorder related to multiple physical
conditions and passive personality disorder. Psychosocial
environmental stresses were stated to include PTSD, physical
conditions, spouse’s physical problems marital discord and
job dissatisfaction. The veteran’s GAF was 75.
Psychological evaluation was also conducted in February 1997.
The psychologist noted that the veteran was fully oriented,
with coherent and clear speech and good thought content at
the time of examination. The veteran’s mood was mildly
anxious and his range of affect was both restricted and
reduced in intensity. He was noted to be in the average
range of intelligence. His Minnesota Multiphasic Personality
Inventory was stated to be invalid due to the veteran’s
endorsement of a preponderance of items in the pathological
direction which would signify severe psychotic
disorganization, which the psychologist opined would not be
an apt description of the veteran’s mental state. Rather,
the examiner opined that the veteran appeared to be an
individual frustrated with and doubtful that others
appreciate or understand the depth and degree of his
emotional and psychological discomfort. The veteran’s
Mississippi Scale result exceeded the cut-off score that
correctly identifies a PTSD diagnosis. The psychologist
concluded that the veteran’s symptom pattern, recurrent
intrusive recollections of distressing Vietnam experiences,
recurrent nightmares, avoidant thoughts, social disengagement
and a sense of alienation, difficulty maintaining sleep,
irritability, angry outbursts and diminished concentration
compelled a diagnosis of combat-related PTSD.
II. Laws and Regulations Pertinent to Increased Evaluations
In general, allegations of increased disability are
sufficient to establish a well-grounded claim seeking an
increased rating. Proscelle v. Derwinski, 2 Vet. App. 629
(1992). In the instant case, there is no indication that
there are additional records which have not been obtained and
which would be pertinent to the present claims. Thus, no
further development is required in order to comply with the
VA's duty to assist mandated by 38 U.S.C.A. § 5107(a).
Disability evaluations are determined by the application of
VA’s Schedule, 38 C.F.R. Part 4 (1996). The percentage
ratings contained in the Schedule represent, as far as can be
practicably determined, the average impairment in earning
capacity resulting from diseases and injuries incurred or
aggravated during military service and the residual
conditions in civil occupations. 38 U.S.C.A. § 1155. In
determining the disability evaluation, the VA has a duty to
acknowledge and consider all regulations which are
potentially applicable based upon the assertions and issues
raised in the record and to explain the reasons and bases for
its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589
(1991). Governing regulations include 38 C.F.R. §§ 4.1, 4.2
(1996), which require the evaluation of the complete medical
history of the veteran’s condition.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there
is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria for
that rating. Otherwise the lower rating will be assigned.
38 C.F.R. § 4.7. All benefit of the doubt will be resolved
in the veteran’s favor. 38 C.F.R. § 4.3.
PTSD
With respect to psychiatric disability, before November 7,
1996, VA regulations provided that the severity of a
psychiatric disorder was premised upon actual symptomatology,
as it affected social and industrial adaptability. 38 C.F.R.
§ 4.130 (1996). Two of the most important determinants were
time lost from gainful employment and decrease in work
efficiency. Id.
The pre-November 7, 1996, schedular criteria for PTSD provide
for a 30 percent evaluation where there is definite
impairment in the ability to establish or maintain effective
or wholesome relationships with people and the psychoneurotic
symptoms result in such reduction in initiative, flexibility,
efficiency and reliability levels as to produce definite
industrial impairment. 38 C.F.R. § 4.132, Diagnostic Code
9411 (1996). Definite impairment has been construed to mean
“distinct, unambiguous, and moderately large in degree.”
VAOPGCPREC 9-93 (November 9, 1993). A 50 percent evaluation
for PTSD is warranted where the ability to establish or
maintain effective or favorable relationships with people is
considerably impaired and by reason of the psychoneurotic
symptoms, the reliability, flexibility and efficiency levels
are so reduced as to result in considerable industrial
impairment. A 70 percent evaluation is warranted where the
ability to establish and maintain effective or favorable
relationships with people is severely impaired and the
psychoneurotic symptoms are of such severity and persistence
that there is severe impairment in the ability to obtain or
retain employment. A 100 percent evaluation is warranted
where the attitudes of all contacts except the most intimate
are so adversely affected as to result in virtual isolation
in the community: there is evidence of totally incapacitating
psychoneurotic symptoms bordering on the gross repudiation of
reality with disturbed thought or behavioral processes
associated with almost all daily activities such as fantasy,
confusion, panic and explosions of aggressive energy
resulting in profound retreat from mature behavior and where
the veteran is demonstrably unable to obtain or retain
employment. 38 C.F.R. § 4.132, Diagnostic Code 9411.
As stated, 38 C.F.R. § 4.132, the VA Schedule of Ratings for
Mental Disorders, was amended and redesignated as 38 C.F.R.
§ 4.130, effective November 7, 1996. Under the new
regulation, the evaluation criteria have substantially
changed, focusing on the individual symptoms as manifested
throughout the record, rather than on medical opinions
characterizing overall social and industrial impairment as
mild, definite, considerable, severe, or total.
Effective November 7, 1996, 38 C.F.R. § 4.130, provides for a
30 percent disability rating when there is occupational and
social impairment with occasional decrease in work efficiency
and intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due to
such symptoms as: depressed mood, anxiety, suspiciousness,
panic attacks (weekly or less often), chronic sleep
impairment, and mild memory loss (such as forgetting names,
directions, recent events). A 50 percent evaluation is
warranted for occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short- and long-term memory (e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment or abstract thinking; disturbances of motivation and
mood; and difficulty in establishing and maintaining
effective work and social relationships. A 70 percent
evaluation is warranted where there is occupational and
social impairment with deficiencies in most areas, such as
work, school, family relations, judgment, thinking or mood;
suicidal ideation; obsessional rituals which interfere with
routine activities; intermittently illogical, obscure, or
irrelevant speech; near-continuous panic or depression
affecting the ability to function independently,
appropriately and effectively; impaired impulse control such
as unprovoked irritability with periods of violence; spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances; inability
to establish and maintain effective relationships. A 100
percent evaluation is warranted where there is evidence of
total occupational and social impairment due to gross
impairment in thought processes or communication; persistent
delusions or hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others; intermittent
inability to perform activities of daily living;
disorientation to time or place; memory loss for names of
close relatives, own occupation or own name. 61 Fed. Reg.
52695-52702 (October 8, 1996) (to be codified at
38 C.F.R. § 4.130).
In determining the appropriate disability evaluation for the
veteran’s PTSD, the question to be answered is whether
manifestations of PTSD meet (or more nearly approximate) the
criteria for a rating in excess of the currently assigned 30
percent. Consistent with the Court’s decision in Karnas v.
Derwinski, 1 Vet. App. 308, the Board will discuss the
veteran’s disability with consideration of the criteria
effective both prior and subsequent to November 7, 1996.
Because the veteran’s claim was filed before the regulatory
change occurred, he is entitled to application of the version
most favorable to him. Id.
The veteran has consistently complained of symptomatology
that primarily includes nightmares, sleep disturbance,
feelings of anger, startle response, intrusive thoughts,
anxiety, depression, difficulty concentrating and
hyperarousal. The assigned 30 percent disability rating
contemplates occupational and social impairment manifested by
the veteran’s occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks with satisfactory general functioning, recognizing
symptoms such as a depressed mood, anxiety and chronic sleep
impairment. The veteran’s reported symptomatology, as well
as the results of VA examinations, support the assignment of
no more than a 30 percent evaluation. He demonstrates at
most an occasional decrease in work efficiency and periods
where he is unable to perform satisfactorily due to increased
agitation and irritation causing interpersonal conflicts. He
has stated that he is difficult to get along with and
sometimes has conflicts with authority figures, but
nevertheless has a history of continuous employment with
General Motors since 1967. He also recently reports that his
financial situation is stable. The contemporary medical
evidence is negative for indications of any memory loss or
panic attacks, and significantly, is negative for evidence of
circumstantial, circumlocutory or stereotyped speech,
difficulty in understanding complex commands, any impairment
of short- and long-term memory or any impairment of judgment
or abstract thinking, in fact showing that the veteran
demonstrates a good level of cognitive abilities, good
judgment, and normal speech and thought processes. Moreover,
despite the veteran’s reported isolationism, he has reported
having monthly contact with another married couple and he has
continued to live with his wife of more than two decades and
five of his children. A review of the evidence of record
shows that multiple VA psychologic and psychiatric examiners
conclude that the veteran’s symptomatology is well-controlled
with current therapy. The September 1995 examiner opined
that the veteran’s PTSD resulted in only mild occupational
impairment. In December 1995, Dr. K.R. stated that the
veteran’s PTSD was productive of considerable impairment.
However, at the time of examination in February 1997, the
veteran himself stated that his symptoms were relatively
controlled with medications. At that time he also admitted
that his sleep disturbance, often attributed to his PTSD, was
in fact partially due to chronic breathing difficulties and
other health problems. He further related marital and
familial stresses unrelated to combat military service, such
as health problems affecting both he and his spouse, and
disciplinary problems with one of his children. The February
1997 examiner concluded that the veteran's PTSD was well-
compensated for under current therapeutic programs.
In conclusion, the above cited findings are consistent with
no more than the assignment of a 30 percent evaluation under
the criteria effective November 7, 1996. That is, the
veteran evidences a measure of occupational and social
impairment most nearly approximating an occasional decrease
in work efficiency and intermittent periods of inability to
perform occupational tasks, but with generally satisfactory
functioning, routine behavior and self-care.
38 C.F.R. § 4.130.
With respect to the pre-November 7, 1996, schedular criteria
for PTSD, the record fails to establish that the veteran’s
ability to foster or maintain effective or favorable
relationships with people is considerably impaired or that by
reason of psychoneurotic symptoms, his reliability,
flexibility and efficiency levels are so reduced as to result
in considerable industrial impairment to warrant the
assignment of a 50 percent evaluation. 38 C.F.R. § 4.132,
Diagnostic Code 9411.
The Board notes that regulations effective prior to
November 7, 1996, set out that the severity of a psychiatric
disorder is premised upon actual symptomatology, and that
social inadaptability is to be evaluated only as it affects
industrial adaptability. 38 C.F.R. §§ 4.129, 4.130.
Although Dr. K.R. characterized the veteran’s PTSD as
productive of considerable impairment, the Board emphasizes
that the veteran has evidenced no more than an occasional
decrease in work efficiency, due to conflicts with his co-
workers or authority figures. He has, despite his
disability, been able to maintain the same employment for
many years. Also, despite his PTSD, his marital and familial
relationship have continued for many years. The
preponderance of the medical evidence is consistent in
finding the veteran’s disability to be mild or moderate in
degree and not approximating severe. Although an examiner’s
classification of psychiatric disability is not determinative
of degree of disability, in this case the medical evidence of
record, i.e., the report and analysis of the veteran's
symptomatology and the accounts of his history, are entirely
consistent with the assessment of a mild-to-moderate degree
of severity. 38 C.F.R. § 4.10 (1996). The veteran has not
reported any loss of time from employment due to his
disability and does not report any inability to function in
his individual duties. His history is significant for
occasional difficulties in work relationship due to anger and
frustration at situations, and for some marital and familial
tensions related to medical problems, disciplinary issues
relevant to his children and his concerns relevant to his
sexual relationship with his spouse. Such is consistent with
the assignment of a 30 percent evaluation for a diminished
ability to establish or maintain effective relationships and
a reduction in initiative, flexibility, efficiency and
reliability levels as to result in a definite degree of
industrial impairment.
With regard to the above, the Board also notes that the
veteran’s most recent GAF scores are 75 and 80. The Court
has held that GAF scores between 55 and 60 indicate only
“moderate difficulty in social, occupational, or school
functioning.” See Carpenter v. Brown, 8 Vet. App. 243
(1995). The veteran’s diagnostic test results clearly do not
meet the threshold of a more than moderate disability under
the Court’s definition.
Thus, a review of the veteran’s history and symptomatology is
consistent and preponderantly against the assignment of an
evaluation in excess of 30 percent under 38 C.F.R. § 4.132,
Diagnostic Code 9411 and under the rating new criteria
38 C.F.R. § 4.130, Diagnostic Code 9411, effective November
7, 1996. The Board emphasizes that the evidence in this case
is not so evenly balanced as to require application of the
provisions of 38 U.S.C.A. § 5107(b); rather, a preponderance
of the evidence being against the veteran’s claim, an
increased evaluation for service-connected PTSD must be
denied.
Left Upper Fibula
The veteran's residuals of a fractured left fibula are
currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Code
5262 which pertains to impairments of the tibia and fibula.
Diagnostic Code 5262 provides that malunion of the tibia and
fibula of either lower extremity warrants a 10 percent
evaluation when the disability results in slight knee or
ankle disability. A 20 percent evaluation requires that the
malunion produce moderate knee or ankle disability. A 30
percent evaluation requires that the malunion produce marked
knee or ankle disability. Nonunion of the tibia and fibula
of either low extremity warrants a 40 percent evaluation if
there is loose motion require a brace. Pertinent regulations
provide that in every instance where the schedule does not
provide a zero percent evaluation for a diagnostic code, a
zero percent evaluation shall be assigned when the
requirements for a compensable evaluation are not met. 38
C.F.R. § 4.31 (1996).
Also potentially applicable are the following diagnostic
codes:
Diagnostic Codes 5260 and 5261 pertain to limitation of leg
motion. Diagnostic Code 5260 provides for a zero percent
evaluation where flexion of the leg is only limited to 60
degrees. For a 10 percent evaluation, flexion must be
limited to 45 degrees. For a 20 percent evaluation is
warranted where flexion is limited to 30 degrees. A 30
percent evaluation may be assigned where flexion is limited
to 15 degrees. Diagnostic Code 5261 provides for a zero
percent evaluation where extension of the leg is limited to
five degrees. A 10 percent evaluation requires extension
limited to 10 degrees. A 20 percent evaluation is warranted
where extension is limited to 15 degrees. A 30 percent
evaluation may be assigned where the evidence shows extension
limited to 20 degrees. For a 40 percent evaluation,
extension must be limited to 30 degrees. And finally, where
extension is limited to 45 degrees a 50 percent evaluation
may be assigned. 38 C.F.R. § 4.71a, Diagnostic Codes 5260,
5261.
Ankylosis of the knee in full extension or in slight flexion
between 0 and 10 degrees warrants a 30 percent rating.
Ankylosis of the knee in flexion between 10 and 20 degrees
warrants a 40 percent rating. 38 C.F.R. Part 4, § 4.71a,
Diagnostic Code 5256 (1996).
38 C.F.R. § 4.71a, Diagnostic Code 5257 provides for
assignment of a 10 percent rating when there is slight
recurrent subluxation or lateral instability, a 20 percent
rating when there is moderate recurrent subluxation or
lateral instability, and a 30 percent evaluation for severe
knee impairment with recurrent subluxation or lateral
instability. Id.
Diagnostic Code 5010 applies to traumatic arthritis and
provides that such is evaluated based on limitation of motion
of the affected part, like degenerative arthritis. See
38 C.F.R. § 4.71a, Diagnostic Code 5003. Where the
limitation of motion of the specific joint or joints involved
is noncompensable, under the applicable diagnostic codes, a
rating of 10 percent is warranted where arthritis is shown by
x-ray and where limitation of motion is objectively confirmed
by evidence of swelling, muscle spasm, or painful motion.
38 C.F.R. § 4.71a, Diagnostic Code 5003.
In the instant case, the most probative evidence is the
report of VA orthopedic examination conducted in July 1996.
Despite the veteran’s complaints of left knee pain, spasm and
popping with instability, examination at that time revealed
no evidence of effusion, increased temperature, redness,
tenderness or lateral instability. The veteran had extension
to zero degrees and flexion to 110 degrees, the examiner
stating that the veteran resisted efforts to flex the knee
further. X-rays were negative. The examiner concluded that
there was no significant muscle defect, no significant scar
and, in fact, no cause found for any left knee pain.
Notably, examination in August 1990 revealed no evidence of
neurologic defect of the lower extremity, consistent with
service medical records showing that the veteran’s fracture
resulted in no neurologic impairment. The August 1990 VA
examiner stated that the veteran had no evidence of residuals
from a left fibular fracture.
Thus, contemporary records reveal that the veteran's fibular
fracture healed without evidence of any abnormal joint space,
malunion or nonunion. Based on such finding a compensable
evaluation under Diagnostic Code 5262 is not warranted.
38 C.F.R. § 4.71a. Nor have any contemporary examinations
revealed evidence of subluxation or instability to warrant
assignment of a compensable evaluation under Diagnostic Code
5257. 38 C.F.R. § 4.71a.
Further, the competent medical evidence does not support a
compensable evaluation based on limitation of leg motion
pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.
In that respect the Board recognizes several outpatient
records that refer to degenerative joint disease or arthritis
of the left knee; however noting that arthritis has not been
confirmed by x-rays, which are consistently negative. Thus,
even with consideration of Diagnostic Codes 5003, 5010, a
compensable evaluation based on limitation of motion is not
warranted. 38 C.F.R. § 4.71a.
The Board has also considered the provision of 38 C.F.R. §
4.40, which provides that functional loss or weakness due to
pain supported by adequate pathology and evidenced by the
visible behavior of the veteran is deemed a serious
disability. However, the medical evidence of record is
consistent in finding no residuals of the veteran's service-
connected fibular fracture. Such is without objective
impairment according to recent examinations. As such, he
does not objectively demonstrate functional loss or weakness
due to pain to warrant a compensable evaluation. Id.; see
also DeLuca v. Brown, 8 Vet. App. 202 (1995).
Finally, the recent medical examinations indicate that the
veteran has no significant scarring residual to his fibular
fracture so as to warrant consideration of a compensable
evaluation under 38 C.F.R. § 4.118, Diagnostic Codes 7803,
7804, 7805 (1996).
In summary, the veteran’s residuals are limited to his own
subjective complaints of pain, unsupported by clinical or
diagnostic evidence. Such findings are clearly against the
assignment of a compensable evaluation under the applicable
diagnostic codes. 38 C.F.R. §§ 4.40, 4.71a. An increased
rating, therefore, is not warranted at this time.
Deviated Septum
Traumatic deflection of the nasal septum with only slight
symptoms is rated as noncompensable. Where there is evidence
of marked interference with breathing space, a maximum of 10
percent will be assigned. 38 C.F.R. § 4.97, Diagnostic Code
6502. The Board notes that the veteran’s nasal problems have
been rated under 38 C.F.R. § 4.97, Diagnostic Code 6502.
These rating criteria have been amended and the new criteria
became effective in October 1996. Now, Diagnostic Code 6502
only contemplates a 10 percent rating for a traumatic
deviation of the nasal septum with fifty percent obstruction
of the nasal passage on both sides or complete obstruction on
one side. 61 Fed.Reg. 46728 (1996) (to be codified at
38 C.F.R. § 4.97, Diagnostic Code 6502). The Board again
points out that where the law or regulation changes after a
claim has been filed or reopened but before the
administrative or judicial appeal has been concluded, the
version most favorable to the claimant will apply. Karnas v.
Derwinski, 1 Vet. App. 308, 313 (1991). In this case, the
old Diagnostic Code 6502 is more favorable and thus 38 C.F.R.
Part 4, Diagnostic Code 6502 (1995) constitutes the
controlling standard.
The Board first recognizes that a review of the claims file
reveals multiple notations of the veteran’s complaints of
breathing difficulties as well as a diagnosis of sleep apnea
and evidence that the veteran underwent nasal surgery in
early 1996. Post-operative follow-up records indicate that
the veteran had good healing after such surgery and that his
sleep apnea had almost resolved. Moreover, comprehensive VA
examination was conducted in July 1996. At that time the
veteran’s septum was in the midline; his nose was straight
and there was no evidence of rhinitis, lesions or nasal
obstruction. As there is no competent medical evidence of a
current interference with breathing space residual to the
veteran’s service-connected deviated septum, a compensable
evaluation is not warranted at this time. 38 C.F.R. §§ 4.31,
4.97, Diagnostic Code 6502. The Board emphasizes that the
evidence in this case is not so evenly balanced as to require
application of the provisions of 38 U.S.C.A. § 5107(b).
Extraschedular
Additionally, the Board does not find that consideration of
an extraschedular rating under the provisions of 38 C.F.R. §
3.321(b)(1) is in order with regard to any of the
disabilities discussed herein above. That provision provides
that, in exceptional circumstances, where the schedular
evaluations are found to be inadequate, the veteran may be
awarded a rating higher than that encompassed by the
schedular criteria. The evidence in this case fails to show
that the veteran’s service-connected PTSD, left knee disorder
or residuals of septal deviation are causing marked
interference with his employment, or require frequent periods
of hospitalization rendering impractical the use of the
regular schedular standards. Id. As set out above, the
veteran has maintained his current employment for decades.
There is no evidence that he has required hospitalization on
a recurrent or frequent basis for any of the disabilities at
issue. Nor has he demonstrated a loss from work due to his
nasal or knee disability, and, as discussed above, his PTSD
only moderately interferes with his ability to maintain such
employment. Moreover, in each case the Schedule provides
ample higher evaluations so that extraschedular consideration
is not warranted.
ORDER
An evaluation in excess of 30 percent for service-connected
PTSD is not warranted.
A compensable evaluation for service-connected residuals of a
fracture to the left upper fibula is not warranted.
A compensable evaluation for service-connected residuals
status post deflection of the nasal septum is not warranted.
REMAND
Service medical records reflect that in October 1969 the
veteran received a fragment wound to the left deltoid,
scapular area, and to the right thigh; both wounds were
debrided and there was no evidence of arterial or nerve
involvement. The veteran is currently service-connected for
residuals of a gunshot wound to the right thigh, Muscle Group
XIII, evaluated as 10 percent disabling; and for residuals of
a gunshot wound to the left arm, deltoid and scapular area,
evaluated as zero percent disabling.
The Board notes that VA examination conducted in January 1984
included a report of x-ray showing closely knit metallic
foreign bodies in an irregularly ovoid form in the postero-
lateral aspect of the soft tissue of the veteran’s right
thigh adjacent to the femur. X-rays of the left arm were
negative. The VA examiner noted a pliable atrophic scar on
the posterior right thigh and a pliable scar on the left
upper arm. There was also evidence of minimal right medial
collateral ligamentous laxity.
At the time of VA orthopedic examination conducted in July
1996, the veteran complained of constant discomfort and
weakness in his left arm, stating that he was unable to raise
his arm above shoulder level. He reported that he heard
noise when moving his shoulder and that his shoulder pain
sometimes awakened him at night. The veteran also complained
that he could feel a lump of shrapnel in the back of his
right thigh and complained of muscle spasm in all the injured
areas when the weather changed. Physical examination of the
left shoulder revealed mild diffuse tenderness of the
shoulder joint. The veteran had abduction to 110 degrees,
flexion to 130 degrees, extension to 40 degrees, adduction to
30 degrees and internal and external rotation both to 90
degrees. He did not complain of great pain during range of
motion exercises. The examiner commented that there was no
significant muscle defect in the left shoulder and no
significant scars. The examiner did not include recitation
of any findings pertinent to the right thigh. X-ray of the
right femur did reveal small metallic foreign bodies adjacent
to the postero-lateral aspect. The examiner’s impression was
no cause found for pain in the left shoulder.
The claims file contains records from J.C., M.D. from January
to June 1997. A January 1997 record indicates that the
veteran incurred an injury to his left shoulder in November
1995 and had experienced pain, clicking and popping ever
since. The record documents related neck pain and indicates
that the veteran underwent physical therapy. Examination
revealed tenderness over the acromioclavicular joint and pain
in the back of the shoulder. Impingement tests were
positive. There was pain in abduction between 80 and 120
degrees. Motion was full but uncomfortable above 80 degrees.
There was significant tenderness along the levator scapula
and ipsilateral rotation causing pain at the base of the
neck, not radiating down the arm. X-rays showed impingement
and a narrowed acromioclavicular joint with some enchondral
ossification of the cartilage. The impression was left
shoulder joint arthritis, subacromial impingement and a
question of full thickness tear of rotator cuff or superior
labral detachment at the base of the biceps tendon. In May
1997 the veteran underwent “SLAP” lesion repair. June 1997
follow-up records indicate good healing.
The Board notes that, based on the above, the veteran has not
been afforded comprehensive examination of his service-
connected right lower extremity since approximately 1984.
Recent examinations have focused on his other injuries,
including, at most, x-ray findings pertinent to the right
thigh. The Board is thus of the opinion that VA examination
is warranted to assess the current nature and severity of all
residuals from a gunshot wound to the left thigh, Muscle
Group XIII.
The Board further notes that the veteran’s left shoulder
disability has not been comprehensively examined subsequent
to “SLAP” lesion repair in May 1997. Although such surgery
appears to have been performed residual to a post-service re-
injury in November 1995, based on the current record there is
a lack of clarity with respect to whether any of the
veteran’s current left upper extremity symptoms may be
attributed to his service-connected gunshot wound or can
otherwise be dissociated therefrom. Thus, the Board finds
that remand for VA examination of the veteran’s left shoulder
is warranted to ensure adequate consideration under the
Schedule.
The Board is aware that the rating criteria for muscle
injuries were changed, effective July 3, 1997. As revised,
38 C.F.R. § 4.56. The Court has held that when the
regulations concerning entitlement to a higher rating undergo
a substantive change during the course of an appeal, the
veteran is entitled to resolution of his claim under the
criteria which is to his advantage. Karnas v. Derwinski,
1 Vet.App. 308, 312 (1991). Here, the ratings applicable to
this case, 38 C.F.R. §§ 4.56, 4.72 do not appear to have
undergone any substantive changes that would impact the
veteran’s claims; however, to ensure adequate due process,
the veteran should be advised of the regulatory changes in
the course of this remand.
Accordingly, the case is remanded to the RO for the
following:
1. The RO should obtain the names and
addresses of all medical care providers
who treated the veteran for his right
lower extremity or left upper extremity
in recent years. In particular, the
veteran should be requested to explain
the circumstances of his 1995 re-injury
to the left shoulder and identify records
pertinent to subsequent treatment, and
any records associated with his 1997 left
upper extremity surgery, VA or private.
After securing the necessary release, the
RO should obtain these records which have
not been previously secured The RO
should ensure that all records of
treatment or evaluation by the VA are
associated with the claims file.
2. The RO should schedule examination by
a VA orthopedic specialist. The entire
claims folder and a separate copy of this
remand should be made available to the
examiner for review before the
examination. Any indicated diagnostic
testing should be accomplished, with a
narrative explanation of the results
included in the examination report. A
detailed rationale for all conclusions
should be provided. If necessary, any
additional examinations should be
scheduled, as recommended by the
orthopedic examiner. The examiner is
requested to respond to the following:
A) The examiner should record all
pertinent medical complaints, symptoms,
and clinical findings, including
specifically active and passive ranges of
left shoulder, right leg and right knee
motion, and the nature, degree and
location of any clinical evidence of
muscle damage in the veteran’s left
shoulder and right lower extremity,
identifying the affected muscle group
where applicable.
B) The examiner should comment on the
functional limitations, if any, residual
to the veteran's service-connected
gunshot wounds to the left shoulder and
right thigh in light of the provisions of
38 C.F.R. §§ 4.40, 4.45. With respect to
the subjective complaints of pain, the
examiner is requested to specifically
comment on: i) whether pain is visibly
manifested on movement of the joints; ii)
the presence and degree of, or absence
of, muscle atrophy attributable to each
service-connected disability; iii) the
presence or absence of changes in
condition of the skin indicative of
disuse due to the service connected
disability, or iv) the presence or
absence of any other objective
manifestation that would demonstrate
disuse or functional impairment due to
pain attributable to the service-
connected left shoulder or right thigh
disabilities. The examiner should also
specifically comment on whether the
veteran’s subjective complaints are
consistent with the objective findings.
C) The examiner should identify the
location and nature of any scars on the
veteran’s left shoulder or right thigh
residual to service-incurred gunshot
wounds, stating whether such are painful,
tender, red, ulcerated, adherent or
otherwise productive of functional
impairment.
D) Based on review of the veteran’s
complete medical history, the examiner
should, insofar as is possible, identify
all clinical and diagnostic findings
residual to his service-connected gunshot
wound to the left shoulder, as
distinguished from any residuals that may
solely be attributed to re-injury in
1995.
3. After the development requested above
has been completed to the extent
possible, the RO should again review the
record and ensure that such is adequate
for appellate review. Any corrective
action should be taken. The RO should
then re-adjudicate the veteran’s claims
with consideration of diagnostic codes
pertinent to limitation of motion,
instability, muscle damage, scarring and
joint deformity, as well as with
consideration of 38 C.F.R. §§ 4.40, 4.45
pertaining to functional loss and
additional disability due to pain. The
RO should also include consideration of
38 C.F.R. § 3.321(b)(1) (1996), if
applicable, and include notice of the
regulatory amendments to 38 C.F.R.
§§ 4.56, 4.72. If any benefit sought on
appeal remains denied, the veteran and
his representative should be furnished a
supplemental statement of the case,
including all potentially applicable laws
and regulations, and given the
opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
ROBERT E. SULLIVAN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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